수형자의 변호사 접견교통권-헌재결정의 국제인권법적 검토

Abstract

Imprisoned person's communication and consultation with his legal counsel has been ambiguous for a long time in legal practice. An imprisoned person shall be allowed adequate correspondence with his legal counsel for legal support, but it has been not so much in reality and law itself. Until recently, a detained person's communication with his legal counsel has been considered constitutional rights. It, however, shall be naturally recognized that an imprisoned person is not entitled to such a right. In this circumstance the Supreme Court and the Constitutional Court have ruled that an imprisoned person shall not be allowed right to legal counsel. Two recent decisions of the Constitutional Court must be regarded a turning point in an imprisoned person's right to legal counsel. The Constitutional Court has ruled that recording or videotaping during legal counsel's visit to an imprisoned person and a facility without adequate convenience for communication with his legal counsel are not compatible with Constitution. It means that an imprisoned person shall be entitled to communication or consultation with his legal counsel under the protection of secrecy and adequate time and facilities for the preparation to communicate or consult with legal counsel. The Constitutional Court's reasoning was based on right to a fair trial, not right to legal counsel. This article is designed to review the Constitutional Court's decisions from perspective of international human rights law while I welcomes two decisions. I agrees with the Constitutional Court that right to a fair trial could be legal basis on an imprisoned person's correspondence with legal counsel. However, it shall not be limited to that right. International standards drafted by United Nations request that a detained or imprisoned person shall be entitled to right to legal counsel without distinction of forms of detention. International human rights law also requests that a detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. An imprisoned person's correspondence shall not be regarded as different from a detained person's right to legal counsel. In conclusion, I argues that a imprisoned person's correspondence with his legal counsel is the same as a detained person's right to legal counsel.